I am planning to buy a flat inherited by two brothers from their father who died intestate. The property is still in their father’s name. What should I do?
—Nishant Shah
As per section 212 of the Indian Succession Act, no right to any part of the property of a person, who has died intestate, can be established in any court of justice, unless letters of administration have been granted by a court of competent jurisdiction. The section does not apply in the case of intestacy of a Hindu, Mohammedan, Sikh, Buddhist, Jain, Indian Christian or Parsi.
However, there is no bar on persons belonging to one of the aforementioned classes from obtaining letters of administration to administer the estate of the deceased. Without the letters of administration, it would be difficult to ascertain whether the two brothers are the only legal heirs. It would, therefore, be advisable to call upon the two brothers to obtain these letters.
If no letters of administration have been granted or the brothers are not willing to obtain them, carry out a title search in the office of the applicable sub-registrar of assurances to ensure the property title is clear.
Also, give a public notice in two newspapers (one in English and one in the local language) having wide circulation, clearly stating your intention to purchase the property and calling upon other legal heirs (if any) to come forward and state their objections, if any, to the sale of the said property.
Also, obtain from the brothers a declaration stating that:
• They are the only legal heirs of their deceased father; and
• They are jointly entitled to the property and there are no other heirs entitled to the property.
Also, ensure that the sale deed by which the property is transferred to you contains representations and indemnity from the two brothers in their capacity as vendors, stating that they are the only legal heirs of their deceased father, that they are entitled to the said property, that there have been no claims made by any other heirs whatsoever and that they will indemnify you against any claims that may be made in future by any other legal heirs of their deceased father.
Ensure that the records in the office of the applicable sub-registrar of assurances and, if applicable, the society in which the flat is situated are correctly mutated or amended—the deceased father’s name will have to be cancelled, the names of the two brothers entered and when the sale to you is completed, the names of the two brothers will be deleted and your name will be recorded as the owner of the flat/property.
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